China no longer a law unto itself

October 30, 2009

By Francesco Sisci
Asia Times
October 30, 2009

BEIJING - The legal traditions of China and those
of ancient Rome and Greece have very different
origins. They grew out of different social needs
and political requirements, reflecting the varied
natures of the civilizations that created the laws.

In ancient China, three words covered the modern
meaning of the Latin word lex (law): xing
(punishment), fa (norm, standard), and li
(ritualistic behavior). As the Lun Yu (the
ancient collections of the sayings attributed to
Confucius) told us, the aristocracy, the junzi,
was to be managed through li, whereas for common
people, xing was more appropriate.

The word xing, punishment, indicated corporal
punishment, as suggested by the radical "knife"
in the character. This could be cutting off the
nose or the ears, or the fingers - or a branding
on the forehead. Such marks showed clearly to
everybody the criminal record of the individual.
In this sense, xing, by cutting, gave a new shape
to the culprit, it adapted the object, the
person. A thief, thus, would be punished by
having to take on the shape of a thief - that is, for example, without a hand.

In a sense, the punishment of xing was to correct
a person by changing his name from the one given
to the one that was appropriate for him. This was
a practical and concrete application of the
Confucian principle, "The father must be a
father; the son, son; the king, king; the minister, minister."

The ritualistic li, was a complex system of
education and etiquette for people with access to
higher social positions, covering how to behave
in different circumstances and with different
people. A lack of etiquette, as it is today, is
not punished by torture or corporal punishment,
but simply by subjecting the guilty to a
humiliating lack of etiquette in response. The
"impolite" person loses face, is demeaned, and
thus is already punished enough. This system
assumes a society split in two, between the
educated and the uneducated or the
underprivileged. They are different, behave
differently, and should be treated differently.

The word fa gave its name to a whole
philosophical school in the 3rd century BC,
called in English "legalism". Because of this,
the word today usually translates into the
English word "law", or the Latin "lex". But
actually it indicates a very different thing.

In the Tianzhi of philosopher Mozi (470 BCE - ca 391 BCE), we can see it:

Therefore the will of Heaven is like the
compasses to the wheelwright and the square to
the carpenter. The wheelwright tests the
circularity of every object in the world with his
compasses, saying: "That which satisfies my
compasses is circular. That which does not is not
circular." Therefore whether an object is
circular or not is all known because the standard
(fa) of circularity is all established. The
carpenter also tests the squareness of every
object in the world with his square, saying:
"That which satisfies my square is square; that which does not is not square."

Therefore whether any object is square or not is
all known. Why so? Because the standard of
squareness is established. Similarly, with the
will of Heaven, Mozi will measure the
jurisdiction and government of the lords in the
empire on the one hand, and the doctrines and
teachings of the multitudes in the empire on the
other. If some conduct is observed to be in
accordance with the will of Heaven, it is called
good conduct; if it is in opposition to the will
of Heaven it is called bad conduct. If a teaching
is observed to be in accordance with the will of
Heaven it is called good teaching; if it is in
opposition to the will of Heaven it is called bad
teaching. And if a government is observed to be
in accordance with the will of Heaven it is
called good government; if it is in opposition to
the will of Heaven it is called bad government.
With this as the model and with this as the
standard, whether the lords and the ministers are
magnanimous or not can be measured as (easily as)
to distinguish black and white. Therefore Mozi
said: If the rulers and the gentlemen of the
world really desire to follow the way and benefit
the people they have only to obey the will of
Heaven, the origin of magnanimity and
righteousness. Obedience to the will of Heaven is
the standard of righteousness.[1]

In this passage, fa is a standard, a model of
behavior that men should take from the sky. Here
Mozi marks a profound innovation: he breaks the
social difference marked by the two sets of
"laws" - those for the inferiors, xing, and the
superiors, li - and says that all men are equal,
and there is no li or xing but fa, taken from the
will (zhi) and intention (yi) of Heaven. That is,
there must be a standard for social behavior,
like that of a carpenter's. In this sense, Mozi
introduces a concept that is actually similar to
that of a neutral aspect of law of the first
century BC - Chinese "Legalism" - and the concept of law in the West.

But it is also clear that Chinese law at this
point is already very different from Western legal tradition.

Furthermore, using fa, Mozi is also very careful
to think in strategic military terms. A crucial
part of his thinking focuses on fei gong, a
theory commonly translated as against "offensive
war". This is no trivial pacifism, but claims
that small states must oppose aggressive wars of larger states.

In fact, as Lu Xiang has shown in a forthcoming
essay on Sunzi, gong in pre-Qin China meant war
of a strong state and army against a minor state
and army. Incidentally, zhan (the word now
commonly translated as "war") meant war between
states with armies of similar sizes, usually
large states. We also know, through fragments of
chapters on military techniques of defense, that
the Mohists (followers of a philosophical and
religious movement during the Warring States era
- 479221 BCE) were warriors with a clear
ideology - the protection and defense of smaller
states against larger ones. The fa was not a law
applied and used in each state individually; it
was a general principle that came from the "will
of Heaven" and had to be used identically in each
state. This idea contrasted with a trend of the
time, when larger states were conquering and annihilating (mie) smaller ones.

In short, we see that the fate of the theories of
law and war were linked and mutually reinforced
each other in pre-Qin times. We find the same
ideas in the text Guanjun, attributed to Shang
Guan, prime minister of the state of Qin in the
3rd century BC. In the text, the application of
new laws, fa, aims to strengthen the state to
deal with wars - this time clearly offensive,
against smaller states (gong) or with states of
equal size (zhan) that are thus more threatening for one's survival.

Law, fa, was an important element in
strengthening the structure of the state in order
to win the warring competition in the central
plain. From Guanjun to Hanfei (about 280 to 233 BCE), zi legalist

China no longer a law unto itself
By Francesco Sisci

philosophers created an efficient, orderly state
ready for war, and the instruments to increase
this efficiency were laws and standardization, as
we can see from the following passage from Hanfei zi you du :

1. A country's strength depends on law, fa.
No country is permanently strong. Nor is any
country permanently weak. If conformers to law
are strong, the country is strong; if conformers
to law are weak, the country is weak.

2. Promote followers of the law
Therefore, at present, any ruler able to
expel private crookedness and uphold public law,
finds the people safe and the state in order; and
any ruler able to expunge private action and act
on public law, finds his army strong and his
enemy weak. So, find out men following the
discipline of laws and regulations, and place
them above the body of officials. Then the
sovereign cannot be deceived by anybody with
fraud and falsehood. Find out men able to weigh
different situations, and put them in charge of
distant affairs. Then the sovereign cannot be
deceived by anybody in matters of world politics.

3. Beware of promotion by reputation or partisanship
Now, supposing promotions were made because
of mere reputations, then ministers would be
estranged from the sovereign and all officials
would associate for treasonable purposes.
Supposing officials were appointed on account of
their partisanship, then the people would strive
to cultivate friendships and never seek
employment in accordance with the law. Thus, if
the government lacks able men, the state will fall into confusion.

If rewards are bestowed according to mere
reputation, and punishments are inflicted
according to mere defamation, then men who love
rewards and hate punishments will discard the law
of the public and practice self-seeking tricks
and associate for wicked purposes. If ministers
forget the interest of the sovereign, make
friends with outside people, and thereby promote
their adherents, then their inferiors will be in
low spirits to serve the sovereign. Their friends
are many; their adherents, numerous. When they
form juntas in and out, then though they have
great faults, their ways of disguise will be innumerable.

4. Civil decay follows punishment of the innocent
For such reasons, loyal ministers, innocent
as they are, are always facing danger and the
death penalty, whereas wicked ministers, though
of no merit, always enjoy security and
prosperity. Should loyal ministers meet danger
and death without committing any crime, good
ministers would withdraw. Should wicked ministers
enjoy security and prosperity without rendering
any meritorious service, villainous ministers
would advance. This is the beginning of decay.

Were such the case, all officials would
discard legalism, practicing favoritism and
despising public law. They would frequent the
gates of the residences of cunning men, but never
once would they visit the court of the sovereign.
For one hundred times they would ponder the
interests of private families, but never once
would they scheme for the state welfare of the sovereign.

5. Efficient administration depends on upholding the law
The law of the early kings said: "Every
minister shall not exercise his authority nor
shall he scheme for his own advantage but shall
follow his majesty's instructions. He shall not
do evil but shall follow his majesty's path."
Thus, in antiquity the people of an orderly age
abode by the public law, discarded all
self-seeking tricks, devoted their attention and
united their actions to wait for employment by their superiors.

Indeed, the lord of men, if he has to inspect
all officials himself, finds the day not long
enough and his energy not great enough. Moreover,
if the superior uses his eyes, the inferior
ornaments his looks; if the superior uses his
ears, the inferior ornaments his voice; and, if
the superior uses his mind, the inferior twists
his sentences. Regarding these three faculties as
insufficient, the early kings left aside their
own talents and relied on laws and numbers and
acted carefully on the principles of reward and punishment.

Thus, what the early kings did was to the
purpose of political order. Their laws, however
simplified, were not violated. Despite the
autocratic rule within the four seas, the cunning
could not apply their fabrications; the deceitful
could not practice their plausibilities; and the
wicked found no means to resort to, so that,
though as far away from His Majesty as beyond a
thousand li, they dared not change their words,
and though as near by His Majesty as the
courtiers, they dared not cover the good and
disguise the wrong. The officials in the court,
high and low, never trespassed against each other
nor did they ever override their posts.
Accordingly the sovereign's administrative
routine did not take up all his time while each
day afforded enough leisure. Such was due to the
way the ruler trusted to his position.

6. Let the law select leaders
Therefore, the intelligent sovereign makes
the law select men and makes no arbitrary
promotion himself. He makes the law measure
merits and makes no arbitrary regulation himself.
In consequence, able men cannot be obscured, bad
characters cannot be disguised; falsely praised
fellows cannot be advanced, wrongly defamed
people cannot be degraded. Accordingly, between
ruler and minister distinction becomes clear and
order is attained. Thus it suffices only if the sovereign can scrutinize laws.

7. The law treats all alike
The law does not fawn on the noble; the
string does not yield to the crooked. Whatever
the law applies to, the wise cannot reject nor
can the brave defy. Punishment for fault never
skips ministers, reward for good never misses
commoners. Therefore, to correct the faults of
the high, to rebuke the vices of the low, to
suppress disorders, to decide against mistakes,
to subdue the arrogant, to straighten the
crooked, and to unify the folkways of the masses,
nothing could match the law. To warn the
officials and overawe the people, to rebuke
obscenity and danger, and to forbid falsehood and
deceit, nothing could match penalty. If penalty
is severe, the noble cannot discriminate against
the humble. If law is definite, the superiors are
esteemed and not violated. If the superiors are
not violated, the sovereign will become strong
and able to maintain the proper course of
government. Such was the reason why the early
kings esteemed legalism and handed it down to
posterity. Should the lord of men discard law and
practice selfishness, high and low would have no distinction.

Hence to govern the state by law is to praise the
right and blame the wrong. [2]

In fact, there is broad consensus among
historians that the legal reforms in the state of
Qin, which used Hanfei's zi theories, made
possible the accumulation of wealth, social
cohesion and massive mobilization of resources
that fueled and produced the unification
campaigns of the first Chinese emperor. The law,
fa, served the purpose of the sovereign, which at
that time was victory in wars against all
enemies. Victory in war ultimately achieved
through the proper use of fa has left a feeling
of nostalgia in China's strategic thinking for
inflexible law that permits the organization of
the state along almost military lines.

This creates a mental continuum between war and
peace, which runs very deep in the tradition of
Chinese thought [3]. The state is organized so
that it can efficiently deal with war. Indeed, it
is so strong and ready that it is able to defeat
the enemy before it even intends to attack or
that its demands are met immediately, without a
fight, because just the possibility of conflict scares potential enemies.

The emergence of the value and efficiency of fa
in strengthening the pre-Qin state went
hand-in-hand with profound social changes. The
aristocrats surrounding the monarch, who were
treated according to li, were wiped out. An idea
of "social equality" blossomed, holding that
ministers and monarchs were to be selected and
chosen for their abilities and not because of
their lineage. These abilities ensured the
ultimate success of the state. (See for example
the Shang Xian chapters in Mozi.)

This was also accompanied by a major
transformation of the army. The virtues of an
individual combatant, requiring years of specific
training, such as in archery or driving a
chariot, become much less important after the
introduction of the mass infantry. The individual
soldier or infantryman was, though, willing to
risk his life in war if in return he received a chance of social advancement.

But in pre-Qin China, the road to the top
echelons of the state was not that of military
virtue. No "government leaders" came to the top
because of their merits in battle. Promotion
within the state (which was organized for
military purposes) was by merit of "civilian"
virtues, by the ability to administer the state.
This was the case with two prime ministers who
contributed much to the strengthening of the
state administration - Guang Zhong (mythical
author of Guanzi) and Shang Guan (legendary author of Guanjun).

This transformation canceled the powerful old
aristocracies and concentrated power in the hands
of the sovereign (the guarantor of the interests
of the state) and his ministers; "managers" of
the state chosen by the sovereign from a large
mass of citizens, in theory all equal and
different only on the basis of individual merit.

Also during the five centuries passing from the
collapse of the Zhou king's power until the
unification of the Qin Empire in 221 BCE, the
fortunes of the individual states were ephemeral.
Large and small states were destroyed (mie), some
states managed to assert their "hegemony" (ba) in
the central plains, but this hegemony did not
last long - it changed hands if a rival state
adopted more effective domestic policies.

In short, there was a situation of great
competition between rival states, and everyone
was fighting life-or-death - something that
required the adoption of policies for ruthless
efficiency. Otherwise, the state and all its
population faced a death penalty. Yet, lasting
success came not really from victory in the
battlefield, but from a "domestic
resilience/endurance" created by an efficient

administrative and political system, which
delivered the conditions for overwhelming victory in war.

In this situation, internal resistance from the
elites in each state weakened, even if there were
many aristocratic conspiracies against efficient
ministers; the constant threat of external danger
ultimately suppressed internal resistance.

The situation of lex in ancient Rome and ancient
Greece was very different. Whereas Chinese
tradition cultivated the idea of continuity
between war and peace by strengthening the state
with the idea of fa, Rome and Athens separated times of war and times of peace.

However, in Greece, there was a tradition of
continuity between war and peace - that of
Sparta, where in times of war, the tough lives of
the warriors, almost paradoxically, were easier than in

peace. But even here, power was not concentrated
in the hands of one person, but divided between
two kings, who, even in times of war, took turns
commanding the army. This cultural tradition was
a "minority" and was eventually abandoned.

Athens and Rome, which shaped Western tradition,
moved differently. In Athens, in the 5th century
BC, Themistocles defeated the Persians, and in
return for his good services to the city he was
ousted from his post and even expelled from the city.

In theory, a city, thinking about its destiny,
was supposed to protect and treasure
Themistocles. However the Athenians - in reality,
to be more precise, the most powerful families in
Athens - feared that Themistocles, with his
success, would become "tyrannos", the undisputed
leader of Athens, a practice that was taking root
in many cities in the Greek colonies in southern Italy.

There were many differences between the Greek
city-states and the Chinese state. Above all with
the Greeks, we see the strong enduring internal
power of the elites who used a single head, one
with value, only when needed. Once the critical
moment had passed, they feared for their own
internal power and tried to protect it rather
than striving for the political advancement of the city.

This domestic competition in Greek cities opened
the way for Macedonians Philip and Alexander when
they conquered Greece. But we see the same
consistency of competition within the aristocracy
when, at the death of Alexander, his generals and
friends fought one another and split the empire.
The interests of individual chieftains were
greater than the desire for a territorial unit
that could have guaranteed greater power to the unified state.

We find a similar division of power in Rome
between the two consuls. This served to protect
the power of the aristocracy against the
excessive concentration of power in the hands of
one man. Only in times of war did the republican
laws provide for a concentration of power in the
hands of a "dictator", a word that after those times became derogatory.

In short, both in Greece and in Rome, there was a
difference in political organization between
times of war and times of peace. In war, the
state gave power to one man, but after the period
of war, the state took back the power and
distributed it among different people, in
competition with each other, just for fear of a concentration of power.

The provision for a "dictator" was applied with
great caution, even during the wars against
Carthage, which were the biggest challenge to
Rome's rise to power. Even then, against the
fearsome Hannibal, at many times two consuls took
charge of the army and the city.

The process of concentrating power in Rome was
slow. The city had to go through the civil wars
between Marius and Sulla, the civil war against
Catiline, the conflict between Julius Caesar and
Pompey, and later the one between Octavian and
Anthony. But even after the establishment of an
"emperor" (the "commander"), there was a
lingering role for other powers - the senate and
the Praetorians (the imperial body guard,
responsible for security in Rome). Here we see a
fundamental difference in the formation of the two empires.

In China, competition between the states in the
central plain in life-and-death wars forced the
absolute concentration of power within the state.
This concentration of power in turn ultimately
provided muscle to a state, qin, which allowed it
to conquer and annihilate all other states. The
law was the instrument used to give power to the
sovereign, but the sovereign was in reality not
subject to the law. There was no power above him
or one that limited him, even though to maintain
social harmony the sovereign at times endeavored
to do things according to the law.

In Rome, in the absence of real external
challenges, the concentration of power in the
emperor occurred through fierce internal
political struggles, and it took place after the
defeat of Carthage, which was the only power that
could have eliminated or challenged Rome. The
civil war commanders, in need of ideological
justification, did not radically eliminate all
the previous divisions of powers, but kept the
institutions that shaped former Roman politics.
The influence of the senate rose and fell almost
cyclically during the imperial period, but the
institution remained. In theory, even the command
of the emperor was subject to the law, although
the emperor could in reality escape the rigors of the law.

In China, the concentration of power was a
driving force behind the survival and victory of
one state over another. Indeed, with the
revolution of the Han, the new dynasty tried to
mitigate the concentration of power attained by
the Qin, but it retained basically the same
political structure. Moreover, in China, power
came from efficient political administration,
providing wealth and social cohesion, thus
endurance and resources to the state before a
war. The heroes were the wise ministers, who
might have had a keen interest in military
affairs, but who reputedly were rarely generals commanding troops in battle.

In Rome, power came from successful battles that
thrashed the enemy. The heroes were the generals
who were also politicians - like Caesar, or all
the other commanders in the civil wars - but they
had to prove their mettle by fighting
shoulder-to-shoulder with their legionnaires.

The principles and histories of the two
civilizations are very different, and as a result
inspired different conceptions of law.

The traditional division of powers in the Roman
empire was, for example, the theoretical
ideological argument that allowed the church to
establish itself as another power, the religious
one, limiting and competing with the power of the
emperor. It was almost as if it were a kind of
later personification of the earlier will of the
common people, previously embodied by the Greek
agora (market square) and the plebeians and
patricians facing the power of the emperor.

The principle of the gospel, "to God what is of
God, to Caesar what is of Caesar", was accepted
by the Roman Empire (Pontius Pilate, we know, did
not move against Christ), and was used to justify some "division of power".

But in China, similar principles were harder to
digest as there was a tradition of the
concentration of power in the hands of the
emperor. (Incidentally, this Chinese
concentration is also very different from the
Caesar-Papism of the Byzantine tradition, but
here we depart from the issue of this essay.)

A second important element in the evolution of
the concept of law in the West came from Italy
during the Renaissance period, which began at the
end of the 13th century. At that point, for the
first time in history, merchants and businessmen
took direct power into their hands and defended their interests with weapons.

These people were interested in enriching
themselves - earning money and commodities - more
than in gaining territory, as in previous
European history. They discovered that money was
much more powerful than territory, and thus small
states, like Florence and Venice, for centuries
ruled the destinies of Europe. This pushed
larger, but far poorer and weaker states (for
instance, Spain) to seek alternative routes to
the Indies - just to avoid the hegemony of the Italian city-states.

Those with power and wealth wanted to reduce the
costs of transactions, and thus they needed a
system of law that would guarantee (cheaper)
peaceful trading. This could not occur through
the threat of the sword (which was costly), even
if that threat was important to induce loyalty to
pacts. They needed a system of rules for
commercial transactions, and these rules became "laws".

Furthermore, the "merchant" state and its laws
was structurally designed to provide benefits to
merchants and the market, from which came common
wealth and power. This attention by the state to
the needs of the free market was a constant element of the modern world.

The calibration of the state according to the
needs of the free market was based on a state
tradition attentive to preventing the
concentration of power, as we saw in the traditions of ancient Roman.

Markets and merchants existed in China, but the
state was not organized according to their needs,
and the state did not expect to have to be
organized to serve the well-being of markets and
merchants. Indeed, the success of a merchant
could be considered a threat to social order, and
therefore his funds could be seized for this reason.

It was this Western tradition that influenced
China, with its fully fledged affirmation coming
in the 1990s. This swept aside centuries of
tradition in which power had been concentrated on
the basis of a strategic vision for the state.
But looking at the experiences of the past 150
years, it is clear to China that the power and
the wealth of the state can only be achieved if
the interests of the market and the merchants are
well protected. The state in a sense puts itself
at the service of the market. It regulates the
market, to protect it, but not to destroy it.
Indeed, the destruction of merchants and the
market would be the seed that would grow to ruin the state.

This has practical implications. China will have
to import from the West not only laws, but a
whole - and very different - Western legal
tradition that needs to be adapted and somehow
reconciled with Chinese traditions. This is a
huge challenge China is just beginning to face,
even as it is already at the forefront of the international arena.

(A Chinese version of this article was presented
at a seminar on Comparative Law organized by
Professor Fei Anling of Zhengfa University in
Beijing. I am also grateful to Lorenzo Infantino
and Edward Luttwak for discussion on the subject.)

Notes
1. Translation by Y-pao Mei "Mo-tse" 1934. (Mozi,
470 BCEca to 391 BCE was a philosopher who lived
in China during the Hundred Schools of Thought
period (early Warring States Period).
2. Translation from "Having Regulations - A
Memorandum" in The Complete Works of Han Fei Tzu,
Volume I. Translated by W K Liao. Arthur Probsthain, London. 1939.
3. See also Mark Edward Lewis The Early Chinese
Empires: Qin and Han, Belknap Press - April 2007.